Fryrear v. Commissioner of Social Security
Filing
18
OPINION entered by Judge Sue E. Myerscough on 2/22/2016. Plaintiff Fryrear's Brief in Support of Motion for Summary Judgment, d/e 10 is GRANTED and, Defendant Commissioner of Social Security's Motion for Summary Affirmance, d/e 15 is DENIED. The decision of the Commissioner is REVERSED AND REMANDED for further proceedings under sentence four of 42 U.S.C. Section 405(g). CASE CLOSED. (MAS, ilcd)
E-FILED
Tuesday, 23 February, 2016 05:38:59 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
TERRIE L. FRYREAR,
Plaintiff,
v.
CAROLYN COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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No. 14-cv-3083
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff Terrie L. Fryrear appeals from the denial of her
application for Social Security Disability Insurance Benefits (DIB)
and Supplemental Security Income Disability benefits (SSI) under
Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 423
1381a, and 1382c. This appeal is brought pursuant to 42 U.S.C.
§§ 405(g) and 1383(c). Fryrear has filed a Brief in Support of
Motion for Summary Judgment (d/e 10), and Defendant
Commissioner of Social Security has filed a Motion for Summary
Affirmance (d/e 15). For the reasons set forth below, the Decision
Page 1 of 40
of the Commissioner is REVERSED and REMANDED for further
proceedings.
I. STATEMENT OF FACTS
Fryrear was born on March 17, 1984, and is a high-school
graduate. She previously worked as a shipping clerk and as an aide
for older and disabled persons. She last worked in January 2005.
Answer to Complaint (d/e 9), attached Certified Transcript of
Proceedings before the Social Security Administration (R.), 36, 38,
59. Fryrear suffers from status post Chiari malformation; residual
dementia; history of Raynaud’s’ disease; and bilateral carpal tunnel
syndrome. She also suffers from a sleep disorder which causes
excessive sleepiness. R. 14-15, 17-18. She protectively filed her
DIB application on June 22, 2010, and she protectively filed her SSI
application on June 29, 2010. She alleged her disability began on
May 1, 2005. The last date that she was insured for DIB was on
June 30, 2005. R. 12, 18.
On February 8, 2005, Fryrear saw her primary care physician,
Dr. Donna L. White, M.D. Fryrear complained of numbness and
tingling in her right upper extremity. Fryrear reported her right
hand periodically felt tingling and went numb or asleep. On
Page 2 of 40
examination, Fryrear’s right shoulder was stable, with full range of
motion, and no tenderness found. Fryrear had sensation to soft
touch in both upper extremities, but Fryrear reported a difference in
right and left. R. 371.
On March 8, 2005, Fryrear saw Dr. White. Fryrear reported
numbness in both upper extremities. On examination, Fryrear had
mild decreased sensation to soft touch. Her grip strength was
equal, and Phalen’s and Tinel’s signs were negative. Dr. White
planned to refer Fryrear for nerve conduction studies. R. 370. On
March 15, 2005, Fryrear saw Dr. White. Dr. White determined that
Fryrear was seven weeks pregnant. R. 369.
On April 19, 2005, Fryrear saw a surgeon, Dr. George E.
Crickard, M.D. III, regarding the numbness in her hands. Dr.
Crickard’s notes stated that recent nerve conduction and EMG tests
showed “bilateral moderately severe median neuropathies with
compression at the carpal tunnels.” R. 286. Fryrear reported
numbness and tingling in both hands and arms. Fryrear reported
that she had “dead hands” in the mornings. She could not open
jars. She reported radiating pain in her left elbow also. She
reported that it was worse sleeping on her side. Dr. Crickard
Page 3 of 40
recommended bilateral carpal tunnel release surgery after she
completed the pregnancy. Dr. Crickard gave her splints to wear at
night. R. 286.
On June 7, 2005, Fryrear saw Dr. White. Fryrear reported
continued severe carpal tunnel syndrome symptoms of pain and
weakness. Fryrear decided that she did not want to undergo
injections, but she would try physical therapy. Dr. White referred
Fryrear for physical therapy for her carpal tunnel syndrome. R.
366.
On July 1, 2005, Fryrear saw Dr. White. Fryrear reported that
she was continuing with physical therapy for her carpal tunnel
syndrome. Fryrear reported that she “still has a little bit of a
problem but in general has improved.” R. 365.
On July 28, 2005, Fryrear saw Dr. White. Dr. White noted
that Fryrear was continuing to get “physical therapy for her carpal
tunnel which seems to be stable.” R. 364.
On November 18, 2005, Fryrear saw Dr. White. Fryrear
delivered her baby within thirty days prior to this appointment.1
Her previous appointment on October 18, 2005, was a prenatal examination.
R. 356.
1
Page 4 of 40
Fryrear reported that her carpal tunnel symptoms were worsening.
She reported that she could hardly hold her baby. Dr. White
assessed bilateral carpal tunnel syndrome, left greater than right.
Dr. White planned to contact Dr. Crickard to schedule surgery. R.
355.
On December 15, 2005, Fryrear saw Dr. White. Fryrear had
recently undergone gallbladder surgery on December 6, 2005.2 The
gallbladder surgery delayed the carpal tunnel surgery. Dr. White
found that Fryrear had diminished grip strength. Fryrear reported
that her hands were “continually numb especially the left.” R. 354.
On March 3, 2006, Dr. Crickard performed a right carpal
tunnel release surgery on Fryrear. The surgery is reflected in later
records containing a list of Fryrear’s surgeries. R. 589. The parties
and the ALJ do not cite to any records of this surgery or the results,
and the Court has not found any such medical records in the Social
Security Transcript of Proceedings.
On December 20, 2006, Dr. White ordered an ANA Evaluation
Screen test. The test was positive at 1:80/titer. The interpretive
note stated:
2
See R. 583, 589 for history of Fryrear’s surgeries as of July 5, 2012.
Page 5 of 40
Speckled ….. This titer may be clinically insignificant. It
may reflect non-specific ANA positivity seen with
malignancy, drug therapy, and advancing age. This
pattern is most frequently seen in scleroderma, mixed
connective tissue disease, systemic lupus erythematosus,
rheumatoid arthritis, and discoid lupus. Anti-DNA and
anti-ENA may be useful if clinically indicated.
R. 303.
On March 29, 2007, Fryrear underwent a multiple sleep
latency test. The test results report concluded:
This study, therefore, does document a tendency for
hypersomnolence with rapid onset of sleep of around 2
minutes and 30 seconds. However, no REM onset of
sleep was detected.
This is compatible with a tendency for
hypersomnolence/hypersomnia and is not incompatible
with narcolepsy. Other tests could be performed to try to
shore up the possibility of narcolepsy.
R. 306.
On May 11, 2007, Dr. White ordered another ANA Evaluation
Screen test. The test was negative. R. 307.
On January 1, 2009, Fryrear underwent a CT scan of her
chest with contrast. The results were unremarkable. R. 318.
Page 6 of 40
On January 8, 2009, Dr. Debra Phillips, M.D., ordered an ANA
Evaluation Screen test.3 The results were abnormal. R. 314, 317.
The interpretive note from Dr. Rex W. Schulz, M.D., stated:
Speckled ….. This titer is of probable clinical significance.
It may be drug induced but is less likely to be related to
malignancy or advancing age. This pattern is most
frequently seen in scleroderma, mixed connective tissue
disease, systemic lupus erythematosus, rheumatoid
arthritis, and discoid lupus. Anti-DNA and anti-ENA
may be useful if clinically indicated.
R. 317.
On March 9, 2009, Fryrear underwent a pulmonary function
test for possible asthma. The test results were normal. R. 319.
On January 31, 2010, Fryrear saw Dr. Paula Mackrides, D.O.,
at Blessing Hospital in Quincy, Illinois, complaining of right-side
numbness. R. 342-46. The numbness started in her face and, over
two days, went to the right arm, leg, and torso with weakness. R.
342. Dr. Mackrides noted that Fryrear saw Dr. Ann Miller for
suspected lupus which “has not been confirmed even though an
extensive workup has been performed in the past.” R. 342. On
examination, strength was 5/5 in all extremities and sensation was
The records from Blessing Hospital in Quincy, Illinois, indicate that Dr.
Phillips holds an M.D. degree. R. 346.
3
Page 7 of 40
intact. R. 343. A CT scan of the brain was normal. R. 345. Dr.
Mackrides ordered an MRI of Fryrear’s brain and recommended
TED hose and ambulating for leg pain. Dr. Mackrides also noted
that Fryrear’s Raynaud’s was stable and recommended continuing
home medications for narcolepsy. R. 344. Dr. Mackrides did not
define what she meant by “home medications,” but she reviewed
Blessing Hospital’s automated records of Fryrear’s medications. R.
342. Blessing Hospital emergency room records from September
30, 2008, indicated that Fryrear was prescribed Adderall to be
taken twice a day. R. 340.
On February 3, 2010, Fryrear underwent an MRI of her brain.
The MRI showed a Chiari I malformation. R. 295. A Chiari
malformation occurs when part of the cerebellum is located below
the opening that connects the brain to the spinal cord. See
National Institute of Neurological Disorders and Stroke, Chiari
Malformation Fact Sheet, located at
www.ninds.nih.gov/disorders/chiari/, viewed February 22, 2016.
On February 26, 2010, Dr. White ordered an ANA Evaluation
Screen test. The test was positive at 1:80/titer. R. 296.
Page 8 of 40
On August 26, 2010, a state agency physician Dr. Virgilio
Pilapil, M.D., opined that Fryrear’s physical impairments were nonsevere through June 30, 2005, her date last insured for DIB. R.
436. Dr. Pilapil opined that Fryrear suffered from pregnancy and
carpal tunnel syndrome prior to June 30, 2005. He opined that
these conditions were non-severe at the time because Fryrear
completed the pregnancy by December 15, 2005, and as of June 30,
2005, surgery was planned to address the carpal tunnel upon
completion of the pregnancy. R. 438.
On August 27, 2010, a state agency psychologist Dr. Joseph
Mehr, Ph.D., prepared a Psychiatric Review Technique form. R.
439-51. Dr. Mehr opined that Fryrear’s medical records contained
insufficient evidence of any mental impairment through Fryrear’s
date last insured for DIB, June 30, 2005. R. 439.
On September 13, 2010, Fryrear underwent a Chiari
decompression with fascia lata graft surgery. R. 466-72. Dr. Arden
Reynolds., M.D., performed the surgery. Dr. Reynolds examined
Fryrear that day before performing surgery. Her mental status
examination was normal. R. 462-63. Fryrear was discharged from
the hospital on September 16, 2010.
Page 9 of 40
R. 466-72.
On October 27, 2010, Fryrear saw Dr. Reynolds’ certified
nurse practitioner, Anita L. Arnold, CNP, for a follow-up
examination on the Chiari malformation repair surgery. Fryrear
reported that she was getting along very well. Fryrear reported
intermittent headaches that were well-controlled with pain
medication. The headaches were “more frequent with changes in
the weather from hot to cold.” R. 478.
On November 2, 2010, a state agency psychiatrist Dr. YoungJa Kim, M.D., reviewed Dr. Mehr’s Psychiatric Review Technique
form on reconsideration, and affirmed his opinion. R. 489.
On December 8, 2010, Fryrear saw Arnold for a follow-up
examination on the Chiari malformation repair surgery. Fryrear
reported intermittent headaches that lasted for a short period of
time and usually resolved with Tylenol. Fryrear reported prickly
sensations on the back of her neck in cold weather. She denied any
vision changes or changes in balance. On examination Arnold
noted that Fryrear’s gait was steady. Arnold recommended
increasing activities as tolerated and specifically recommended a
daily thirty-minute walk. R. 610.
Page 10 of 40
On January 7, 2011, Fryrear saw state agency psychologist
Dr. Frank Froman, Ed.D., for a consultative mental examination.
R. 491-94. Fryrear reported that she had had a stroke and was
diagnosed with a Chiari malformation. Fryrear reported that she
had surgery on the malformation and continued to have significant
problems thereafter. She reported chronic pain, excessive fatigue,
and inability to use stairs. She also reported that she had a type of
narcolepsy. She used to fall asleep standing up, but she did so no
longer. She reported, though, that she could fall asleep “at the drop
of a hat.” R. 491.
Dr. Froman found that Fryrear was oriented and in good
contact with reality. Dr. Froman opined that Fryrear’s IQ was
average or better. He assessed residual dementia with the Chiari
malformation, and he gave her a Global Assessment of Functioning
(GAF) score of 70. Dr. Froman opined that Fryrear could perform
one or two step assemblies at a competitive rate, could relate
adequately with co-workers and supervisors, could understand
simple oral and written instructions, and could handle stress of
customary employment. R. 493.
Page 11 of 40
On January 30, 2011, a state agency psychologist Dr. Leslie
Fyans, Ph.D., prepared a Psychiatric Review Technique form and a
Mental Residual Functional Capacity Assessment form. R. 495512. Dr. Fyans opined that as a result of Fryrear’s status post
neurosurgery, Fryrear had mild restrictions on daily living activities
and in maintaining concentration, persistence or pace; and
moderate difficulties in maintaining social functioning. R. 496,
505. Dr. Fyans opined that Fryrear had moderate difficulties
understanding, remembering, and carrying out detailed
instructions. R. 509. Dr. Fyans found no other functional
limitations from her neurosurgery. R. 509-10. Dr. Fyans opined
that Fryrear retained the mental capacity to perform substantial
gainful activity that involved one and two-step unskilled tasks. R.
511.
On January 31, 2011, a state agency physician Dr. Sandra
Bilinsky, M.D., prepared a Physical Residual Functional Capacity
Assessment form. R. 513-20. Dr. Bilinsky opined that Fryrear
could lift twenty pounds frequently and ten pounds occasionally;
could stand and/or walk for six hours in an eight-hour workday;
and could sit for six hours in an eight-hour workday. Dr. Bilinsky
Page 12 of 40
noted that Fryrear was recovering well from her Chiari
malformation surgery. Dr. Bilinsky opined that Fryrear could
return to light work activity by September 2011. R. 514. Dr.
Bilinsky opined that Fryrear was limited to occasional climbing,
balancing, stooping, crouching, kneeling, and crawling. R. 515.
Dr. Bilinsky opined that Fryrear had no other physical limitations.
Dr. Bilinsky concluded:
The claimant’s symptoms and alleged functional
limitations have been consistently described throughout
the case record. The examining source’s opinions are
consistent with the residual functional capacity
determined in this decision. Finally, the report
submitted by Dr. White is given appropriate weight in
this assessment.
R. 520.
On March 9, 2011, Fryrear saw Arnold for a follow-up
examination on the Chiari malformation repair surgery. Fryrear
reported that she was getting sinus headaches that she treated with
Tylenol or ibuprofen. Fryrear reported that the headaches were
“getting less and less.” R. 603. Fryrear reported that she was
increasing her daily activity and had “gotten back to her daily
rituals.” R. 603. Fryrear reported that taking care of her special
needs child could bring on headaches. On examination Arnold
Page 13 of 40
found “Excellent upper extremity strengths. Gait is steady.” R.
603. Arnold recommended Tylenol as needed for headaches. R.
603.
On April 5, 2011, Fryrear saw Dr. White. Dr. White noted that
Fryrear was recovering slowly from the “Chiari.” Fryrear reported
that her leg was still bothering her and she still had intermittent
headaches. Fryrear reported that she was told by Dr. Reynolds that
she would probably need more surgery in the future. R. 571.
On May 17, 2011, Fryrear saw Dr. White to follow up on the
effect of a new medication named Savella that Dr. White prescribed.
Fryrear reported that the medication was working, that Fryrear had
decreased leg pain and an “overall improved sense of well-being.”
R. 572. Fryrear reported having “quite a bit of hip pain” after
spending two or three hours on her feet. Fryrear reported that she
was working at Kohl’s Wholesale. Fryrear also reported good
results from her current physical therapy. On examination, Fryrear
had full range of motion in both hips “with good hip adductor,
abductor flexor and extensor strength.” R. 572.
On August 16, 2011, Fryrear saw Dr. White. Fryrear reported
continuing difficulty with weakness and pain in her legs and pain in
Page 14 of 40
her hands, upper shoulders, and neck. R. 572. On examination,
Dr. White noted absent pinprick and soft touch sensation elbows to
fingers bilaterally, and absent soft touch and diminished pinprick
sensation from the knees to the toes bilaterally. Fryrear’s grip
strength was 3+/5, her wrist strength was 4+/5, flexion and
extension of ankles were 4+/5, and she had a positive Romberg
sign. R. 573.
On August 18, 2011, Dr. White completed a form entitled
“Medical Source Statement of Ability to do Work-Related Activities
(Physical).” R. 521-24. Dr. White opined that Fryrear could lift less
than ten pounds occasionally or frequently; stand and/or walk for
less than two hours in an eight-hour workday; and would need to
alternate between sitting and standing in an eight-hour workday.
R. 521. Dr. White opined that Fryrear’s ability to push and pull
was impaired because she had “Neuropathy & loses grip easily.” R.
522. Dr. White opined that Fryrear’s sensation for pinprick and
soft touch was absent from elbows to finger tips bilaterally, and her
sensation for soft touch was absent and her sensation for pinprick
was diminished from her knees to her toes bilaterally. Dr. White
opined that Fryrear’s grip strength was 3/5 and her wrist strength
Page 15 of 40
was 4/5. R. 522. Dr. White opined that Fryrear could occasionally
crawl, but could never balance, kneel, crouch, or stoop. Dr. White
did not note any limitation on Fryrear’s ability to climb. R. 522.
Dr. White opined that Fryrear was limited to frequently handling
and fingering, but she could feel constantly. R. 523. Dr. White
opined that Fryrear should avoid temperature extremes, vibration,
and hazards such as machinery or heights. R. 524. Dr. White
noted that Fryrear had neuropathy and Raynaud’s phenomenon,
and vibration would exacerbate pain. Dr. White agreed with
Fryrear’s allegation that her disability began on May 1, 2005. R.
524.
On September 21, 2011, Fryrear saw Arnold for a one-year
follow-up examination after Chiari malformation repair surgery.
Fryrear reported that she was doing fairly well. She completed
physical therapy and had full range of motion in her neck. Fryrear
reported constant aching and heaviness sensation in her legs that
she treated with compression hose. Fryrear reported an aching
sensation throughout her arms and legs. Fryrear also reported
numbness and tingling in her hands. On examination, Arnold
found, “Coordination is good. Excellent upper and lower extremity
Page 16 of 40
strength, iliopsoas, quads, EHL, anterior and posterior tibials,
deltoids, biceps, triceps, and grips are all intact fully. No
headaches are noted. The patient’s gait is steady.” R. 600.
On December 8, 2011, Fryrear saw Dr. White. Fryrear
reported pain that originated in her left wrist and forearm and
radiated into her left arm, shoulder, and neck. Fryrear reported
that her splints provided some improvement, but the pain was
getting increasingly worse. On examination, Phalen’s sign and
Tinel’s sign were positive, Fryrear’s grip was weaker on the left, and
Fryrear had some muscle wasting/atrophy. Fryrear had good range
of motion in her shoulders, and movement of her shoulders did not
cause or exacerbate the pain. Dr. White diagnosed left carpal
tunnel exacerbation. R. 575. Dr. White referred Fryrear to
Dr. Crickard. R. 576.
From December 12, 2011 to March 9, 2012, Fryrear
underwent physical therapy for pain in her left wrist and in her
lower extremities. She was discharged from therapy because her
progress had plateaued. Her worst pain went from 8/10 down to
6/10. R. 567.
Page 17 of 40
On May 24, 2012, Fryrear saw Dr. White and complained of
left carpal tunnel symptom. Fryrear also complained of leg pain.
Fryrear’s leg pain was relieved when put on compression hose. Dr.
White noted decreased grip strength on the left. Carpal tunnel
surgery was already scheduled for June 22, 2012. R. 577.
On June 14, 2012, Fryrear had a preoperative visit with Dr.
Crickard. Fryrear continued to report tingling and numbness in the
left hand. Dr. Crickard reported that Fryrear had a “positive EMG
carpal tunnel.” Dr. Crickard took a history to prepare for surgery.
R. 589.
On June 22, 2012, Fryrear underwent left carpal tunnel
release surgery. R. 653.
On July 5, 2012, Fryrear saw Dr. Crickard for a follow-up
examination. Fryrear reported that she was better in both hands.
She reported less numbness and tingling and gains in grip strength.
R. 583.
On September 20, 2012, the Administrative Law Judge (ALJ)
conducted an evidentiary hearing in Hannibal, Missouri. R. 30-65.
Fryrear appeared in person and with her counsel. Vocational
Expert Dr. Jeffrey Magrowski, Ph.D., appeared by telephone. R. 32;
Page 18 of 40
see R. 141. Fryrear’s attorney confirmed that the file was complete.
R. 33.
Fryrear then testified. She was married and lived in a single
family house with her husband and two children, an eight-year-old
boy and a six-year-old girl. Fryrear completed high school and took
some college courses, but did not complete any course of study.
She last worked in January 2005 as a shipping clerk for a company
that manufactured boat anchors. R. 38. She had to lift anchors up
to twenty pounds as part of the job. R. 39. She stopped working
when the anchor business closed. R. 38-39.
Fryrear started to go to college in 2005 after the anchor
business closed, but she stopped because she started getting sick.
Fryrear testified that she started falling asleep standing up. Fryrear
testified that she started having pain in her upper extremities. She
also had pains in her chest that turned out to be gallstones. R. 39.
She testified that she could not return to school at the time of the
hearing because she had difficulty holding a pen or pencil and also
had a hard time typing on a computer. R. 40.
Fryrear testified that her carpal tunnel syndrome started in
2005. She had pain that caused her to wake up at night. Initially,
Page 19 of 40
she took Tylenol 3 and underwent physical therapy. She also wore
braces on her wrists and forearms. R. 40-41.
She also had trouble picking up coins and gripping boat
anchors. She was reprimanded for working too slowly because of
the problems with her hands. She testified that her hands went
numb while she was holding anchors. Fryrear testified that she
ruined anchors by dropping them. R. 41-42. The business
reopened, but she was not asked to return to work while other
former employees were rehired. She believed she was not rehired
because of her problem holding on to anchors. R. 42.
Fryrear testified that she had right carpal tunnel surgery in
December 2005. R. 43. Fryrear testified that she had gallbladder
surgery before she had carpal tunnel surgery. R. 42. The carpal
tunnel surgery helped. Fryrear testified that the intense night pain
stopped. Fryrear testified, however, that she never got sensation
back in her hands. She testified that she still had trouble with her
right hand picking up items from coins to pots and pans and still
drops things. R. 43.
Page 20 of 40
Fryrear testified that she had left carpal tunnel surgery in
June of 2012. Fryrear testified that the surgery stopped the night
pain in her left hand. R. 44.
Fryrear testified that she had narcolepsy. She testified that
she fell asleep when she was stressed. She testified that, after
having children, she fell asleep standing up. She testified that she
fell when she woke up. She testified that the first time that she fell
asleep standing up and then fell when she woke up was in the
spring of 2005. She was standing in her kitchen when she fell
asleep and then fell into the kitchen wall when she woke up. R. 45.
She testified that she also fell asleep in public places such as
waiting rooms. R. 44. She testified that she fell asleep in this
manner four to six times per month. R. 45.
Fryrear testified that she took Adderall twice a day for her
narcolepsy. She testified that the medicine allowed her to keep her
driver’s license and to maintain a routine. She testified that she
was able to stay awake from when the children came home from
school until her husband came home from work. R. 45. She also
took naps at specific times during the day, 10:00 a.m. and between
1:30 p.m. and 2:00 p.m. R. 46. She testified that if she did not
Page 21 of 40
take her naps, she fell asleep at inappropriate times, such as
waiting at the bus stop for her children. R. 46. She testified that
during an episode, she slept for a period from thirty seconds to
three minutes. R. 47. Fryrear testified that the doctor at Quincy
Sleep Center in Quincy, Illinois, diagnosed her with narcolepsy. R.
48. She testified that she did not see the doctor who made the
diagnosis. The doctor looked at the study results to make the
diagnosis. R. 48-49.
Fryrear testified that she liked to draw, but her carpal tunnel
kept her from engaging in that hobby. R. 50-51.
Fryrear testified that she had surgery on her Chiari
malformation on September 13, 2010. R. 51. Fryrear testified that
she was diagnosed when she had spells in which she was unable to
breathe. She was told she had a stroke. The Chiari malformation
was detected on an MRI examination. R. 51.
Fryrear testified that the surgery went fine and she was told
that the symptoms would improve over the next year. She testified
that her symptoms did not improve. She testified that she had pain
and heaviness in her legs every day, like her legs were bruised. R.
52. She testified that she wore compression hose to alleviate the
Page 22 of 40
pain. She testified that she could only wear them during the day.
R. 53. Fryrear also testified that she had continued pain and lack
of sensitivity in her shoulders and biceps. The pain was similar to
her carpal tunnel symptoms, but not so intense. R. 53-54. She
testified that she stiffened up and had a hard time getting out of
bed or out of a chair. She also testified that she had pain with any
pressure on her body. She testified that she experienced severe
pain if her child sat on her. R. 54. Fryrear testified that Dr. White
prescribed the hose. R. 55.
Fryrear testified that she wore ankle braces because she had
overly flexible ankle joints. R. 54.
Fryrear testified that she underwent physical therapy for her
carpal tunnel syndrome and for the pain in her legs. R. 56.
Fryrear testified that in a typical day she got out of bed in the
morning, took her pain medication and put on her compression
hose. She waited thirty minutes for the pain medication to “kick
in.” R. 56. She got her kids ready for school. She would sit down
until 1:30 p.m. or 2:00 p.m. and then start to get a chore done or
dinner started. She did her chores, and she picked the kids up as
the bus stop at about 3:00 p.m. She supervised her kids while they
Page 23 of 40
did their homework. She served dinner at 6:00 p.m. Her husband
came home about 6:30 p.m. Her children did their homework and
took baths. Her children were in bed by 8:30 p.m. She then went
to bed. R. 56-57.
The ALJ asked Fryrear if she could work a job in which she
could sit most of the day. Fryrear said she could if she could get up
and move at will. R. 57.
Fryrear testified that she had difficulty keeping up with her
children. Her son was severely autistic and often tried to get away
from her. She put a harness and leash on him to keep him from
getting away. R. 57. He also still wore a diaper. R. 56.
Vocational expert Dr. Magrowski then testified. Dr. Magrowski
stated that he would like to hear Fryrear’s testimony about her
other past work. R. 58. The ALJ asked Fryrear about her past
work. Fryrear testified that she worked as a direct support person
for elderly and disabled persons who were in “staff-assisted
independent living.” R. 59. She worked that job full-time for
eighteen months. She was not required to lift to perform this job.
She worked overnight and cleaned the house, did laundry, and got
the individuals ready in the mornings. R. 59-60. The ALJ
Page 24 of 40
confirmed that Dr. Magrowski had enough information about
Fryrear’s two jobs. R. 60.
The ALJ asked Dr. Magrowski the following hypothetical
question:
I want you to assume an individual with the claimants’
age, education, and work history who is limited to the full
range of light exertional work as defined in the
regulations; limited to occasional climbing of ramps and
stairs and ladders and ropes and scaffolds; occasional
balancing, stooping, kneeling, crouching, and crawling.
Such an individual is limited to bilateral frequent
handling and fingering and bilateral constant kneeling
(sic) [feeling]. Such an individual must avoid all exposure
to extreme cold and all exposure to excessive vibrations.
Such an individual must avoid all exposure to hazards,
such as operational control of moving machinery and
unprotected heights. . . . Could such an individual
return to any of the past work . . . ?
R. 61. Dr. Magrowski testified that such a person could perform
Fryrear’s past work as a shipping clerk as it exists in the national
economy. R. 61. Dr. Magrowski testified that such a person could
also perform other jobs in the national economy, such as office
helper, with 1,500 such jobs in Missouri and 80,000 in the national
economy; sales clerk, with 1,000 such jobs in Missouri and over
150,000 in the national economy; assembler of laundry, with 1,000
Page 25 of 40
such jobs in Missouri and 20,000 nationally; and mail clerk with
2,500 such jobs in Missouri. R. 61-62.
II. THE DECISION OF THE ALJ
On December 14, 2012, the ALJ issued his decision. R. 1224. The ALJ followed the five-step analysis set forth in Social
Security Administration Regulations (Analysis). 20 C.F.R.
§§ 404.1520, 416.920. Step 1 requires that the claimant not be
currently engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant to
have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If
true, Step 3 requires a determination of whether the claimant is so
severely impaired that she is disabled regardless of her age,
education and work experience. 20 C.F.R. §§ 404.1520(d),
416.920(d). To meet this requirement at Step 3, the claimant's
condition must meet or be equal to the criteria of one of the
impairments specified in 20 C.F.R. Part 404 Subpart P, Appendix 1
(Listing). 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant is
not so severely impaired, the ALJ proceeds to Step 4 of the Analysis.
Step 4 requires the claimant not to be able to return to her
prior work considering her age, education, work experience, and
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Residual Functional Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and
(f), 416.920(e) and (f). If the claimant cannot return to her prior
work, then Step 5 requires a determination of whether the claimant
is disabled considering her RFC, age, education, and past work
experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c), 416.920(g),
416.960(c). The claimant has the burden of presenting evidence
and proving the issues on the first four steps. The Commissioner
has the burden on the last step; the Commissioner must show that,
considering the listed factors, the claimant can perform some type
of gainful employment that exists in the national economy. 20
C.F.R. §§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d
565, 569 (7th Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 352 (7th Cir. 2005).
The ALJ also considered the different relevant time frames for
determining eligibility for DIB benefits and SSI benefits. To be
eligible for DIB benefits, the claimant must be disabled prior to the
date that she was last insured. The date last insured depends on
the claimant’s work history. See 42 U.S.C. § 423(c)(1); 20 C.F.R.
404.131. Fryrear’s date last insured was June 30, 2005. R. 12. A
claimant may be entitled to SSI benefits regardless of work history
Page 27 of 40
or dates of insurance; however, she may only be eligible to receive
benefits commencing on the date she applied for SSI benefits. 20
C.F.R. § 416.335. Fryrear applied for SSI benefits on June 29,
2010. R. 12.
The ALJ found that Fryrear met her burden at Steps 1 and 2.
Fryrear had not engaged in substantial gainful activity since May 1,
2005, and she had the severe impairments of status post Chiari I
malformation; residual dementia; history of Raynaud’s disease; and
bilateral carpal tunnel syndrome. R. 14. With respect to Fryrear’s
other conditions, the ALJ stated:
I find that all impairments other than those enumerated
above, alleged and found in the record, are non-severe or
not medically determinable as they have been responsive
to treatment, cause no more than minimal vocationally
relevant limitations, have not lasted or are not expected
to last at a “severe” level for a continuous period of 12
months, are not expected to result in death, or have not
been properly diagnosed by an acceptable medical
source.
R. 14-15 (citations omitted).
At Step 3, the ALJ found that none of Fryrear’s impairments or
combination of impairments met or medically equaled the severity
of a Listing. R. 15.
At Step 4, the ALJ found that Fryrear had the following RFC:
Page 28 of 40
After careful consideration of the entire record, I find the
claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except
occasional climbing of ramps, stairs, ladders, ropes, and
scaffolds; occasional balancing, stooping, kneeling,
crouching, and crawling; frequent bilateral fingering and
handling; constant feeling; avoid all exposure to extreme
cold and excessive vibrations; avoid all exposure to
hazards such as moving machinery and unprotected
heights; and limited to simple, routine, repetitive tasks.
R. 16. In explaining the RFC finding, the ALJ summarized Fryrear’s
testimony regarding her impairments. The ALJ mentioned Fryrear’s
claims of neuropathy from the Chiari malformation. The ALJ
recited the history of Fryrear’s carpal tunnel syndrome and her
testimony about her continued loss of sensation and her inability to
pick up and hold objects. R. 17.
The ALJ reviewed evidence regarding Fryrear’s allegations of
narcolepsy:
According to the claimant, she has narcolepsy, which
causes her to fall asleep unexpectedly about 4-6 times a
month in episodes lasting from 30 seconds to 3 minutes.
She described having episodes while standing up, while
waiting for her children to get off the school bus and
during waits for medical treatment. The claimant
admitted that a doctor diagnosed narcolepsy after review
of her medical chart, and she never actually saw the
doctor who diagnosed the condition. Stress exacerbates
the condition. However, the claimant admitted that
Adderall is prescribed and it provides relief, as does daily
Page 29 of 40
napping while her children are in school. The claimant
said she has sustained falls due to narcolepsy.
R. 17-18.
The ALJ then found that Fryrear’s testimony about the
“intensity, persistence and limiting effects” of her condition was not
credible. The ALJ found that her testimony was not consistent with
the medical record. The ALJ first looked at the period from
Fryrear’s alleged onset date of May 1, 2005, until her last day
insured for DIB, June 30, 2005. The ALJ noted that “good physical
exam results were reported and no objective imaging reports
supported disability.” R. 18. The ALJ stated that Fryrear made
subjective reports of pain and numbness from carpal tunnel
syndrome which improved with physical therapy. The ALJ also
noted that several objective tests were normal:
Several objective imaging studies were completed well
after the date last insured and prior to the application
date for Title XVI benefits. They revealed normal results.
For example, a 2007 sleep study revealed results not
compatible with narcolepsy. A chest x-ray and
pulmonary function test in 2009 revealed normal results.
R. 18. The ALJ noted that in January 2010, “Narcolepsy was
treated with home medications and Raynaud’s disease was stable . .
. .” R. 18.
Page 30 of 40
The ALJ noted that Fryrear’s condition improved after the
Chiari malformation repair surgery. The ALJ referenced nurse
practitioner Arnold’s follow-up examinations that showed continued
improvement over the next year. R. 19. The ALJ also referenced
Fryrear’s report to Dr. White in 2011 that she was working at a
wholesale facility and was on her feet for two to three hours before
experiencing pain. The ALJ stated, “Her activities belied severe
limitation because the claimant reported she was employed at a
wholesale facility and she underwent monthly physical therapy
treatments.” R. 19.
The ALJ also noted that Fryrear’s carpal tunnel syndrome was
improved after surgery. The ALJ cited treatment notes that
recorded less numbness and tingling and improved grip strength.
R. 19. The ALJ concluded that Fryrear’s testimony about the
severity of her symptoms was not consistent with this medical
evidence.
The ALJ also relied on the opinions of the consultative
psychologist, Dr. Froman, the state agency psychologists Drs. Mehr
and Fyans, and the state agency psychiatrist Dr. Kim regarding
Fryrear’s mental limitations. R. 20-21. The ALJ gave little weight
Page 31 of 40
to the opinions of state agency physicians Drs. Bilinsky and Pilapil
regarding Fryrear’s physical limitations. The ALJ stated these
doctors opined that Fryrear could perform the full range of light
work, but the ALJ found that Fryrear’s ability to work was more
limited. R. 21.
The ALJ gave great weight to Dr. White’s opinions about
Fryrear’s limitations on fingering, handling, and feeling. The ALJ
found that these were supported by the record after Fryrear’s last
carpal tunnel surgery. The ALJ gave little weight to Dr. White’s
opinions of Fryrear’s ability to lift, carry, sit, stand, walk, and
assume postures such as kneeling, crouching, or crawling. The
ALJ found that these opinions were not supported by the medical
record. R. 21.
At Step 4, the ALJ found that Fryrear could not perform her
past relevant work. The ALJ relied on the Department of Labor
Dictionary of Occupational Titles (DOT) and the testimony of Dr.
Magrowski. R. 22.
At Step 5, the ALJ found that Fryrear could perform a
significant number of jobs in the national economy. The ALJ relied
on the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart
Page 32 of 40
P, Appendix 2, and the opinions of Dr. Magrowski that Fryrear
could perform the jobs of office helper, mail clerk, and assembler.
R. 22-23. The ALJ concluded that Fryrear was not disabled.
Fryrear appealed the decision of the ALJ. Fryrear submitted
additional evidence to the Appeals Council. Commissioner’s
Memorandum in Support of Motion for Summary Judgment (d/e
16), attached Supplemental Certified Record of Proceedings before
the Social Security Administration dated December 21, 2012
through January 8, 2013. The supplemental evidence included
records from two office visits to Dr. White.
On December 27, 2012, Fryrear saw Dr. White. Dr. White
noted, in part:
S: She is here kind of at the very tail-end of an
exacerbation or flare of whatever rheumatologic condition
or autoimmune condition she has. We have not ever
been able to fully diagnose it. She has intermittent
positive tests. . . .
R. 672. Fryrear reported sinus congestion, fatigue, body aches, and
stiffness in her fingers. R. 672. On examination, Fryrear’s fingers
and wrists were swollen and tender with decreased range of motion.
Dr. White assessed “exacerbation of rheumatologic/autoimmune
disorder NOS.”
Page 33 of 40
R. 672. Dr. White prescribed Prednisone.
On January 8, 2013, Fryrear saw Dr. White. Dr. White noted
in part:
S: Terrie is here for followup . . . . She has recovered
from her exacerbation of whatever it is she has with the
Prednisone but continues to have ongoing fatigue,
myalgias and arthralgias. Is having increasing fine motor
difficulty with her hands which makes it difficulty (sic) for
her to do things. Gets frustrated because she is trying to
get Disability which I actually think is very appropriate
for her to be getting given her underlying autoimmune
rheumatologic issue.
R. 676. Dr. White ordered another ANA test and additional testing.
R. 676. The results are not in the record.
On January 23, 2014, the Appeals Council denied Fryrear’s
request for review. The decision of the ALJ then became the final
decision of the Defendant Commissioner of Social Security. R. 1.
Fryrear then brought this action for judicial review.
III. ANALYSIS
This Court reviews the Decision of the Commissioner to
determine whether it is supported by substantial evidence.
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate” to support the decision.
Richardson v. Perales, 402 U.S. 389, 401 (1971). This Court must
Page 34 of 40
accept the findings if they are supported by substantial evidence
and may not substitute its judgment. Delgado v. Bowen, 782 F.2d
79, 82 (7th Cir. 1986). This Court will not review the credibility
determinations of the ALJ unless the determinations lack any
explanation or support in the record. Elder v. Astrue, 529 F.3d
408, 413-14 (7th Cir. 2008). The ALJ must articulate at least
minimally his analysis of all relevant evidence. Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). The ALJ must “build an accurate
and logical bridge from the evidence to his conclusion.” Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
In this case, the ALJ failed to build a logical bridge from the
evidence to his conclusion about Fryrear’s sleeping disorder. The
ALJ misread the results of the 2007 sleep latency test. The test
report stated that the results were “compatible with a tendency for
hypersomnolence/hypersomnia and is not incompatible with
narcolepsy.” R. 306. The ALJ erroneously stated that the test
results “were not compatible with narcolepsy.” R. 18.
This erroneous reading of the 2007 test results could have
affected both the ALJ’s findings at Step 2 and his credibility
determination. The ALJ found that the sleeping disorder was nonPage 35 of 40
severe at Step 2. The ALJ stated that the conditions he found to be
non-severe were not medically determinable or were not diagnosed
by an acceptable medical source.
R. 14-15. The ALJ should address whether this finding should
change in light of the error in his reading of the sleep latency test
results.
The ALJ also misquoted the sleep latency test results in his
discussion of the medical evidence that supported his credibility
finding. The error could have affected the credibility finding. The
credibility finding necessarily affected the rest of the opinion,
including the RFC finding, the evaluation of the opinion evidence,
and the findings at Steps 4 and 5. All of these portions of the
opinion, therefore, may need to be revised on remand.
The Court also does not understand the ALJ’s apparent
criticism that Fryrear did not meet the doctor who diagnosed her
sleeping disorder. See R. 17-18. Fryrear’s testimony indicates that
she believed that the doctor who interpreted the sleep latency test
results diagnosed her condition. See R. 47-49. It is unclear to the
Court why it matters whether she met the doctor who interpreted
the results. Patients often do not meet specialists such as
Page 36 of 40
radiologists and other physicians who interpret complex test
results.
The ALJ also failed to address all the material evidence
regarding Fryrear’s carpal tunnel syndrome. The ALJ stated that
Fryrear’s claims of carpal tunnel injuries from her alleged onset
date, May 1, 2005, to her last date insured, June 30, 2005, were
based on her subjective reports. R. 18. The ALJ further stated that
during this time period, “no objective imaging reports supported
disability.” R. 18. The ALJ nowhere mentions that on April 19,
2005, Dr. Crickard noted that nerve conduction and EMG studies
showed that Fryrear had “bilateral moderately severe median
neuropathies with compression at the carpal tunnels.” R. 286. Dr.
Crickard’s examination note was made twelve days before May 1,
2005, but still is clearly relevant and shows that objective testing
supported Fryrear’s reports of impairment from carpal tunnel
syndrome symptoms.
The ALJ must articulate at least minimally his analysis of all
relevant evidence. Herron, 19 F.3d at 333. The ALJ failed to
mention Dr. Crickard’s examination note and gave the erroneous
impression that no objective testing supported Fryrear’s subjective
Page 37 of 40
reports of pain and numbness prior to her date last insured. On
remand, the ALJ should correct this error and revise this portion of
his decision.
Fryrear also challenges the ALJ’s treatment of Dr. White’s
opinion and the RFC determination. The ALJ specifically relied on
his credibility determination in making the RFC finding. The ALJ
necessarily must reconsider his RFC finding as part of his review of
his credibility determination.
The ALJ gave little weight to Dr. White’s exertional and
postural findings because they were inconsistent with other
evidence in the record. R. 21. The ALJ was required to give
controlling weight to Dr. White’s opinion, as a treating physician, on
the nature and severity of impairments if the opinion “is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2).
The Court agrees with the ALJ that Dr. White’s exertional opinions
were inconsistent with Arnold’s examination notes and with
Fryrear’s report that she worked at a Kohl’s Wholesale store in
which she stood for two to three hours. On remand, however, the
Page 38 of 40
ALJ should still review this finding in light of any revisions to his
credibility findings. A change in the credibility finding, if any, could
affect the weight given to Dr. White’s opinions.
The Court does not address the request for a remand under
sentence six 42 U.S.C. § 405(g) because the matter should be
reversed and remanded on the other grounds noted above. On
remand, the ALJ can consider additional evidence, including the
supplemental evidence in which Dr. White assessed a non-specific
autoimmune/rheumatologic disorder.4 The evidence was not before
the ALJ at the time he made the first decision, and so, was not
relevant in reviewing that decision. See Wolfe v. Shalala, 997 F.2d
321, 322 n.3 (7th Cir. 1993).
IV. CONCLUSION
For the reasons stated, Plaintiff Fryrear’s Brief in Support of
Motion for Summary Judgment (d/e 10) is GRANTED and
Defendant Commissioner of Social Security’s Motion for Summary
Affirmance (d/e 15) is DENIED. The decision of the Commissioner
Counsel for Fryrear reported to the ALJ that the record was complete (R. 33),
but significant gaps exist in the medical record, including the nerve conduction
EMG studies, the 2006 carpal tunnel surgery records, the examination notes
from Dr. Miller regarding possible Lupus, and several years of Dr. White’s
treatment notes. On remand, counsel may want to consider whether to provide
some of this material if available.
4
Page 39 of 40
is REVERSED and REMANDED for further proceedings under
sentence four of 42 U.S.C. § 405(g). CASE CLOSED.
ENTER:
February 22, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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